KIRIT P MEHTA SCHOOL OF LAW

B.B.A, LL.B (Hons.) First Semester

LEGAL METHODS: JURISPRUDENCE

TOPIC: HUMAN RIGHTS OF AN ACCUSED IN INDIA

Submitted to:-

Ms. Jharna Sahijwani

School of law, NMIMS (Deemed to be university)

Submitted by:-

Ritika Sharma

A046

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 INTRODUCTION
“Injustice anywhere is a threat to justice everywhere”- Martin Luther King (Jr)

“RIGHTS”, this word has been a hot topic in the country for the past few years. In the 21st
century, human rights are no longer a national issue but an international one. From Right to
Privacy to Right to die, we have come across quite a few landmark judgements. In this welter of
rights, another important right is that of an accused. The French revolution played a major part in
the declaration of human rights with its symbolic depiction of the aspirations of humans to
become free from persecution and atrocity from fellow men. The presence of rights of an
accused in Magna Carta, 1215 under section 39 against wrongful detentions and confinement,
proves how important human rights were, even in the 13th century:

“No freeman shall be taken or imprisoned or outlawed or banished, or in any way destroyed, nor
will we go upon him, nor send upon him, except by legal judgment of his peers or by the law
of the land “

Human rights are considered to be fundamentals for every individual’s spiritual, physical and
mental development. Natural laws are the basis of Human rights. They exist regardless of what
you believe in, where you are from and how you choose to live your life. Human rights includes
Right to equality, Right against arbitrary arrest, Life and personal liberty, Freedom of speech and
expression and right for demanding enforcement of such guaranteed rights. They are inalienable
and indivisible, but they can be restricted if a person is found guilty by a court of law.

According to CrPC, any police officer may arrest any person without an order from the
magistrate and without a warrant in any cognizable offence, which gives a wide scope of misuse
and abuse of powers. The NCHR (National Commission of Human Rights) has received
innumerable reports of non-registration of cases, violence and death under custody, etc.
Therefore, protection of human rights during criminal justice (pre-trial, during trial and post-
trial) is of utmost importance .An accused cannot be denounced just because of the charges
levelled against him. People must learn to differentiate between an accused and a convicted
person as they are not on the same fitting. Moreover, the constitution of India and the criminal
procedure code includes provisions for a fair and impartial trial thus safeguarding the basic rights
of an accused. These rights are provided for an accused on the famous criminal jurisprudence
“Let hundreds go unpunished, but never punish an innocent person”. Our legal system is based
on this principle giving an advantage to the accused because he is presumed to be “innocent until
he is proven guilty” and other benefits are provided such as the right to remain silent, right to a
fair trial amongst others.

There is little awareness about the section 436A of the CrPC among under trials and thus they
often remain in jails for years. The population of under trial prisoners in India equaled the

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population of a Caribbean nation “Barbados” in 2016.Our goal is not to punish the wrongdoer
but to socialize and reform him through the right ways.

Keywords: abuse of power, human rights violation, India, under trials, UDHR, custodial deaths,
torture, rights.
Keywords: abuse of power, human rights violation, India, under trials.

RESEARCH OBJECTIVES

1. To point out the basic rights which are available to an accused in India.
2. To find out if the existing laws in India are enough for protecting the rights of an accused
person.
3. To study the problems faced by an accused during trials.
4. To study more about the Universal Declaration of human rights.

Keywords: abuse of power, human rights violation, India, undertrials.

AIMS OF THE STUDY

1. This research paper shall give a holistic analysis of the various aspects of the rights of an
accused in the context of human rights in India.
2. With this study, we will try to bring awakening in the awareness about the rights of an
accused.

Keywords: abuse of power, human rights violation, India, undertrials.

RESEARCH QUESTIONS

This research will help in answering the following questions:

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INDEX

SERIAL TITLE PAGE

1. CHAPTER 1 : Who is an accused? 5

2. CHAPTER 2: Basic rights of an accused 7

3. CHAPTER 3 : Judicial approach towards 11

4. CHAPTER 4 : Dk Basu v. State of West 14

5. CHAPTER 5 : Suggestions and Conclusion 17

6. CHAPTER 7 : Bibliography 18

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CHAPTER 1

WHO IS AN ACCUSED?

In the Black Law Dictionary, an accused is “the generic name of the defendant in a criminal
case”. According to Law Lexicon’s Dictionary the term ‘accused’ has been defined as ”a person
against whom an allegation has been made that he has committed an offence, or who is charged
with an offense ”. The term ‘accused person’ in general sense means,” a person who has been
alleged of committing, or charged with an offense”. Suspect and accused are two key terms
related to a criminal investigation. People tend to think that they are quite the same. Now what is
the difference between an accused and a suspect?

An accused is a person against whom a charge has been placed. With reference to criminal
proceedings the word defendant could be used interchangeably with the word accused. He is a
person who has moved on from the stage of a suspect to an accused. There is reasonable proof to
believe that he has committed the crime. The indictment is confirmed against an accused.

A suspect is a person viewed by cops to have committed a crime. Suspect would have the
motive and/or the modus operandi and/or the intent to commit the crime. The investigation
authorities have some reasons to consider him the one who has either committed the crime or
who has played an important role in the criminal activity. The suspect is only believed to be
involved in the crime. Later, as the investigations proceed he might have no hand in the crime.
The indictment is this case hasn’t been confirmed.

An accused would become a convict, if he is pronounced guilty of committing the crime.

The accused is protected by the law, and it is the courts who decide whether the person is fit to
be in the society or be behind bars. There is a need for the law to be very clear when it comes to
investigating cases, providing legal guidance and collecting evidence.

The term crime denotes a behavior that is negative and that one should be punished for by the
State. The notions that acts such as theft, murder and rape are prohibited exists worldwide. It is
important to understand that what precisely is referred to as a criminal offence is defined by the

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criminal law of that country. There is a need for protection from different people in the society.
For example, there is a need for protection from the police.

There is also a need for the society as a whole to protect each other by ensuring that dangerous
crimes are not left out. Further, there are even those that suffer from mental retardation. There
are those that can cause harm to themselves and others. Therefore, for the good of the society,
they are often locked in order to ensure that they do not cause harm to these in the society that
could have been harmed.1

1
Walker, S. (2005). Sense and nonsense about crime and drugs: A policy guide. Belmont, Calif.

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CHAPTER 2

BASIC RIGHTS OF AN ACCUSED

Every person has certain fundamental rights under the constitution of India, which cannot be
taken away from him irrespective of his gender, caste, creed and also the crime he may have
committed. The rights of an accused person in India are divided into three stages which include
pre-trial rights, rights during court trial and rights after trial.

PRE-TRIAL RIGHTS

This is the most crucial stage, where an FIR is filed and the police could arrest a person and
search his property. The following are the rights granted to an accused before the trial
commences:

1. Right to know about the charges and accusations: Under section 50(1) of the Civil
Procedure Code, 1973, the accused has the right to know the grounds of his arrest, his
offense and charges filed against him.
2. Right against wrongful arrests: A person must be produced before a Judicial
Magistrate within 24 hours of his arrest as per Section 56 and 76 of the code. The accused
is protected under Section 57 of Cr.P.C. and Article 22(2) of Constitution against
unlawful arrest, which includes the freedom from unwarranted stopping and questioning
by a police officer.
3. Right to privacy and protection against unlawful searches: Only by a mere
presumption of an offence, the police officials cannot violate the privacy of the accused.
The police cannot search the property of an accused without a warrant.
4. Right against self-incrimination: As per Article 20(3) of the Constitution, a person
cannot be compelled to be a witness against himself.

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 RIGHTS OF THE ACCUSED DURING THE TRIAL

It is the responsibility of the state to ensure that due process of law is followed, along with a
fair and speedy trial. The accused must not be subjected to forced or tortured. The rights of
an accused during trial are as follows:

 Right to be present during trial: All evidence and statements must be recorded
in the presence of either the accused or his criminal lawyer or both.
 Right to get Copies of Documents: The accused can look at all the copies of the
documents filed by the prosecutor in relation to the case.
 Right to be cross-examined: The accused to prove his innocence can be cross-
examined.

RIGHTS OF AN ACCUSED AFTER TRIAL

Depending on the outcome of his trial, the accused has certain rights:

If acquitted by the court:

 Right to police protection: The accused can ask for police protection in case there is
any reasonable proof to believe that there is a threat to his life.

If found guilty by the court:

Prisoners are also citizens of this country and they do not lose their fundamental rights in jails.
Our Constitution does not expressly provide the provisions for the rights of a prisoner, but in the
case of T.V. Vatheeswaran v. State of Tamil Nadu2, it was held that the Articles 14, 19 and 21
are available to the prisoners as well as freemen.

 Right to Appeal: He has a right to appeal in higher court if he wishes to do so.

2
1983 AIR 361, 1983 SCR (2) 348.

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 Supreme Court held in Kishore Singh v. State of Rajasthan 3 that use of third degree by police
officers was violating the fundamental right of a person under article 21 of the Indian
Constitution.

SOME OTHER BASIC RIGHTS AVAILABLE TO AN ACCUSED

Every person has a right to fair trial; the same has been preserved by the constitution of
countries like U.K, U.S.A and India. The Universal Declaration of Human Rights, 1948
affirms the worth and dignity of all people. The Declaration includes 30 rights that form the
basis of all international human rights law. UNDHR includes the right to freedom from
torture, right to free speech, right to asylum and right to education. Articles 5 to 11 talk about
the rights of an arrested and an accused person. The constitution of India in sync with the
UNDHR has adopted four basic principles to govern the justice system, they are:

1. Protection against ex-post facto laws: A person cannot be punished for an act which
was not a crime then, but due to changes in law is now an offense. According to
article 20(1) of the constitution,” No person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which have been inflicted
under the law in force at the time of commission of the offence.”
2. Presumption of innocence: Under article 11 of the UNDHR, presumption of
innocence is a legal right of an accused. The burden of proof is on the prosecution to
collect evidence and present to trier of fact (judge or jury). If there is even a
reasonable doubt, the accused must be acquitted.
3. Protection against double jeopardy: As per Article 20(2) of the Constitution, a
person cannot be prosecuted and punished for the same offence more than once. In
India, a partial protection against double jeopardy (Autrefois convict) is a
Fundamental Right guaranteed under Article 20 (2) of the Constitution of India.
However, it does not extend to autrefois acquit, and so if a person is ‘acquitted’ of a

3
1981 AIR 625, 1981 SCR (1) 995.

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 crime can be retried. The protection against autrefois acquit is a statutory right in our
country and not a fundamental right.
4. Due process concept: This doctrine not only checks if there is a law to deprive the
life and personal liberty of a person but also see if the law made is fair, just and not
arbitrary.
The right to fair trial is defined in International Convention on Civil and Political
Rights (ICCPR) under article 14and 16 and it is binding in 72 states that have ratified
it. India is one of these 72 countries which have ratified ICCPR.

The accused has a right to remain silent. Any confession taken forcefully, with threats
or inducement would not be admissible in the court. All confessions made through deceit
are ruled out as evidence on which could lead to the conviction of the accused, to
maintain fairness. The accused has the right to choose his counsel and prepare his
defense with him. He cannot be compelled to be a witness against himself. The accused
would be given an interpreter if there is a language and communication barrier. He can
also avail the right to get him medically examined to protect himself. This would help
him to prove any physical injury sustained by him in the custody of police.

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CHAPTER 3

JUDICIAL APPROACH TOWARDS PROTECTION OF AN ACCUSED

The ultimate guardian of human rights is our judiciary. It protects rights which are enumerated as
well as some rights which are un-enumerated in the constitution, by widening the scope of
fundamental rights. Article 21 of the Indian constitution gives every person the right to life and
personal liberty, the Supreme Court in various instances expanded the interpretation of this
article and strengthened the Indian criminal justice system. The right of under trials against
arbitrary and unreasonable handcuffing, compensation in case of violation of article 21, right to
privacy, right against illegal arrest , and police atrocities, etc., have been held as a part of Article
21. In Maneka Gandhi v. Union of India4, the Supreme Court held that a fair trial is a
fundamental right to life and personal liberty under article 21. It held that “procedure prescribed
by law has to be fair, just, reasonable and not fanciful, oppressive or arbitrary”. Maneka
Gandhi’s case lead to the emergence of Indian version of an American concept of “due process
of law”, which is in the Fifth Amendment to the U.S constitution and is now a procedural
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safeguard for citizens. In Charles Sobraj v. Superintendent, Central Jail, Tihar, the Supreme
Court pronounced, “Prisoners retain all rights enjoyed by free citizens except those lost
necessarily as an incident of confinement”. Therefore, prisoners by virtue of their status as
detainees do not lose out on their fundamental rights. Protection extends not only till physical
torture but also includes mental torture. Not allowing an individual to sleep, bright lights,
continuous questioning for a long period of time, all constitute compulsion and fall within
prohibited third degree methods 6.

The Supreme Court in Pradeep Kumar Verma v. State of Bihar 7, required the authorities to do
needful in the matter urgently to ensure speedy disposal of cases, if the people’s faith in the
judiciary was to remain. Though no general guideline can be fixed regarding speedy trial by the

4
1978 AIR 597, 1978 SCR (2) 621.
5
AIR 1978 SC 1514.
6
Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
7
AIR 2007 SC 3057.

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Court and that each case has to be examined on its own facts and circumstances, but it is the
bounded duty of the Court and the prosecution to prevent unreasonable delay8.

In Khatri v. State of Bihar 9, the right to free legal aid was held to be implicit in the guarantee
under Article 21 as an essential ingredient of a reasonable, fair and just procedure. The state
cannot avoid providing free legal aid, citing administrative or financial inability as it is a
constitutional obligation. In Sunil Batra (II) v. Delhi Administration10, Krishna Iyer, J., speaking
for the majority said that “prisons are built with stones of law and so it behoves the Court to
insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant guardians
of the prison system where they go berserk and defile the dignity of the human inmate.”
Prisoners are also humans and hence they must have the freedom to read and write, meditate and
any form of peaceful recreational activity must be permitted.

Since there is a constitutional guarantee against self-incrimination, narco analysis test results are
inadmissible in the Indian courts. In Narco Analysis, certain chemicals are injected into your
blood stream, which lower your inhibitions. In Smt. Selvi & Ors. v.State of Karnataka 11, a batch
of appeals challenging the constitutionality of three investigative techniques: narco-analysis, the
polygraph test, and the Brain Electrical Activation Profile, were examined by the Supreme Court.
The Supreme Court of India therefore reasoned :“If an individual’s will was overborne or if his
confession was not the product of a rational intellect and a free will, his confession is
inadmissible because it was coerced.”

“It is well-known that ‘Rule of Law’ sustains democracy and it is equally true that to a bold and
independent judiciary is assigned the task of maintaining the Rule of Law. Impartiality and
independence of judiciary depends on high standards of conduct followed by judges. Only if the
highest possible standards are adhered to, the faith of the common in the judiciary be maintained.
It is, therefore, imperative that the actions of judges are transparent and constitutionally sound.
The judiciary cannot afford to adopt an uncritical attitude towards itself. We judges, at all levels,
must make ourselves accountable and ensure that our actions are transparent and are within the
parameters set by the Constitution. The judiciary must follow the standards of morality and

8
Moti Lal Saraf v. State of J & K, AIR 2007 SC 56.
9
AIR 1981 SC 928.
10
AIR 1980 SC 1579.
11
AIR 2010 SC 1974.

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behavior which it sets for others, and as a matter of fact before laying down standards of
behavior for others the judiciary must demonstrate that the same standards apply to it and are
being followed by it. Constant evaluation of the functioning of the institution needs, therefore, to
be encouraged if the high esteem conferred on the judiciary is to be justified” 12.

12
A.S. Anand, Former CJI., „Indian Judiciary and Challenges of 21st Century‟, S.P. Verma (Ed.) Indian Judicial
System Need and Directions for Reforms 1- 22 (2004).

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 CHAPTER 4
AN ANALYSIS OF DK BASU V. STATE OF WEST BENGAL

A letter was written to the then Chief justice of India to bring his attention towards
increasing deceases in detentions and lock-ups. Considering the importance of the issue,
the letter was treated as a writ petition. In reply, the state of West Bengal filed a petition
saying that there were no custodial deaths and if there were any enquiries were going on
the people responsible for it. In all custodial crimes that are of real concern is not only
infliction of body pain but the mental agony which a person undergoes within the four
walls of police station or lock-up. Whether it is physical assault or rape in police custody,
the extent of trauma a person experiences is beyond the purview of law.
The court set 11 guidelines for all the police officers to follow while arresting or
detaining an accused. These guidelines are basically rules that have to be followed to
maintain transparency and not to violate the fundamental rights of an accused or arrested
person13.
1. Police arresting and interrogating suspects should wear “accurate, visible and clear”
identification and name tags, and details of interrogating police officers should be
recorded in a register.
2. A memo of arrest must be prepared at the time of arrest. This should: Have the time
and date of arrest. be attested by at least one witness who may either be a family member
of the person arrested or a respectable person of the locality where the arrest was made.
be counter-signed by the person arrested.
3. The person arrested, detained or being interrogated has a right to have a relative, friend
or well-wisher informed as soon as practicable, of the arrest and the place of detention or
custody. If the person to be informed has signed the arrest memo as a witness this is not
required.

13 AIR 1997 SC 610.

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 4. Where the friend or relative of the person arrested lives outside the district, the time
and place of arrest and venue of custody must be notified by police within 8 to 12 hours
after arrest. This should be done by a telegram through the District Legal Aid Authority
and the concerned police station.
5. The person arrested should be told of the right to have someone informed of the arrest,
as soon as the arrest or detention is made.
6. An entry must be made in the diary at the place of detention about the arrest, the name
of the person informed and the name and particulars of the police officers in whose
custody the person arrested is.
7. The person being arrested can request a physical examination at the time of arrest.
Minor and major injuries if any should be recorded. The "Inspection Memo" should be
signed by the person arrested as well as the arresting police officer. A copy of this memo
must be given to the person arrested.
8. The person arrested must have a medical examination by a qualified doctor every 48
hours during detention. This should be done by a doctor who is on the panel, which must
be constituted by the Director of Health Services of every State.
9. Copies of all documents including the arrest memo have to be sent to the Area
Magistrate for his record.
10. The person arrested has a right to meet a lawyer during the interrogation, although not
for the whole time.
11. There should be a police control room in every District and State headquarters where
information regarding the arrest and the place of custody of the person arrested must be
sent by the arresting officer. This must be done within 12 hours of the arrest 14.

Failure to comply with the above guidelines would lead to departmental action and also
be held for contempt of court, the proceedings for which would be carried out in High
court which has territorial jurisdiction. This was the first instance where he Supreme
Court gave proper guidelines and rules for the tutelary force.
In December 2017, the Delhi High Court upheld the conviction of six policemen, for the
custodial death of Dalip Chakraborty in 1995.The Bench comprising of Justice S.

14
Ibid.

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Murlidhar and Justice I.S Mehta referred to the Dk Basu case and observed, “In the two
decades since, the number of instances of custodial violence and custodial deaths in
particular has not shown a decline…The past five reports of the National Human Rights
Commission show that the instances of deaths in police custody have not witnessed a
marked decline. None of the legislative changes recommended by the LCI have been
made yet. The problem still stares at us in face. It is in the backdrop that the Court
proceeds to examine these appeals”.

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CHAPTER 5

SUGGESTIONS AND CONCLUSION

“Human rights” as an expression itself means something which is very basic for each and every
individual. In a country like India, people are looked upon as criminals even before they have
been proved guilty. They are harassed by the police and subjected to torture which is not only a
violation of the constitutional rights but also their human rights. An accused can be called to the
court, before arresting him , failing which he an arrest could be carried out without harming his
dignity. Although article 22 clause 1 of the Constitution gives every person the right to know the
ground of his arrest and a power to consult a lawyer of his choice, and Section 50 of the
Cr.PC,1973 states that,” a police officer must forthwith communicate to an arrested person full
particulars of the offence for which he is arrested or any other grounds for such arrest” , these
things are hardly adhered to in reality. There is an urgent need to bring amendments in the
Criminal Justice Administration so that the states understand that its duty is to reform the
wrongdoer and not just punish him. The torture leading to custodial deaths is a major violation of
human rights. National Human Rights Commission registered 1680 cases of custodial deaths
between April 1, 2017 and February 28, 2018.

The Delhi High Court set a good example last year convicting six policemen for a custodial
death. Strict action for misuse of power against policemen and personal accountability will
ensure protection of human rights. The Supreme Court in various landmark judgements,
broadened the interpretation of Article 21 of the constitution to safeguard the rights of a person
i.e. protection of life and personal liberty, of inhuman treatment, prison torture and police
atrocities .

Though many international conventions and charters have talked about the rights of an accused,
but delinquency is the implementation of such conventions in our country.. The need of the hour
is to protect and promote basic human rights and spread awareness among individuals about the
existing laws, otherwise all the safeguards provided to us by the Constitution would just remain
on paper. We need stricter enforcement machinery and violation or breach of any law should
result in stern punishments.

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BIBLIOGRAPHY

Research papers

 Syed Ejaz Abbas (2013) “Rights of accused, under trial prisoners and convicts under
the criminal laws of India”
 Tanya Singh, Rajiv Kumar Singh, Pramod Kumar Singh (2015)”Right of ‘Speedy’ and
‘Fair’ Trial of accused: An overview” International Journal of Applied Research.

 Salvatore Zappalà (March ,2010) “The Rights of Victims v. the Rights of the
Accused” Journal of International Criminal Justice.

Web links

 http://www.legalserviceindia.com/legal/article-219-rights-of-accused-persons.html
 https://www.lawctopus.com/academike/concept-fair-trial/
 https://thelawblog.in/2017/07/31/rights-of-arrested-person/
 http://archive.indianexpress.com/news/the-line-between-arrests-rights/398823/
 https://www.livelaw.in/delhi-hc-uphold-conviction-six-policemen-custodial-death-case-
says-not-much-changed-since-d-k-basu-judgment/

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